Justice Wayne

Concurring as I do entirely in the opinion of the
court, as
it has been written and read by the Chief Justice -- without any
qualification of its reasoning or its conclusions -- I shall
neither read nor file an opinion of my own in this case, which I
prepared when I supposed it might be necessary and proper for me
to do so.

The opinion of the court meets fully and decides every point
which was made in the argument of the case by the counsel on
either side of it. Nothing belonging to the case has been left
undecided, nor has any point been discussed and decided which was
not called for by the record, or which was not necessary for the
judicial disposition of it, in the way that it has been done, by
more than a majority of the court.

In doing this, the court neither sought nor made the case.
It was brought to us in the course of that administration of the
laws which Congress has enacted, for the review of cases from the
Circuit Courts by the Supreme Court.

In our action upon it, we have only discharged our duty as a
distinct and efficient department of the Government, as the
framers of the Constitution meant the judiciary to be, and as the
States of the Union and the people of those States intended it
should be, when they ratified the Constitution of the United
States.

The case involves private rights of value, and
constitutional principles of the highest importance, about which
there had become such a difference of opinion, that the peace and
harmony of the country required the settlement of them by
judicial decision.

It would certainly be a subject of regret, that the
conclusions of the court have not been assented to by all of its
members, if I did not know from its history and my own experience
how rarely it has happened that the judges have been unanimous
upon constitutional questions of moment, and if our decision in
this case had not been made by as large a majority of them as has
been usually had on constitutional questions of importance.

Two of the judges, Mr. Justices McLean and Curtis, dissent
from the opinion of the court. A third, Mr. Justice Nelson, gives
a separate opinion upon a single point in the case, with which I
concur, assuming that the Circuit Court had jurisdiction; but he
abstains altogether from expressing any opinion upon the eighth
section of the act of 1820, known commonly as the Missouri
Compromise law, and six of us declare that it was
unconstitutional.

But it has been assumed, that this court has acted
extra-judicially in giving an opinion upon the eighth section of
the act of 1820, because, as it has decided that the Circuit
Court had no jurisdiction of the case, this court had no
jurisdiction to examine the case upon its merits.

But the error of such an assertion has arisen in part from a
misapprehension of what has been heretofore decided by the
Supreme Court, in cases of a like kind with that before us; in
part, from a misapplication to the Circuit Courts of the United
States, of the rules of pleading concerning pleas to the
jurisdiction which prevail in common-law courts; and from its
having been forgotten that this case was not brought to this
court by appeal or writ of error from a State court, but by a
writ or error to the Circuit Court of the United States.

The cases cited by the Chief Justice to show that this court
has now only done what it has repeatedly done before in other
cases, without any question of its correctness, speak for
themselves. The differences between the rules concerning pleas to
the jurisdiction in the courts of the United States and
common-law courts have been stated and sustained by reasoning and
adjudged cases; and it has been shown that writs of error to a
State court and to the Circuit Courts of the United States are to
be determined by different laws and principles. In the first, it
is our duty to ascertain if this court has jurisdiction, under
the twenty-fifth section of the judiciary act, to review the case
from the State court; and if it shall be found that it has not,
the case is at end, so far as this court is concerned; for our
power to review the case upon its merits has been made, by the
twenty-fifth section, to depend upon its having jurisdiction;
when it has not, this court cannot criticize, controvert, or give
any opinion upon the merits of a case from a State court.

But in a case brought to this court, by appeal or by writ of
error from a Circuit Court of the United States, we begin a
review of it, not by inquiring if this court has jurisdiction,
but if that court has it. If the case has been decided by that
court upon its merits, but the record shows it to be deficient in
those averments which by the law of the United States must be
made by the plaintiff in the action, to give the court
jurisdiction of his case, we send it back to the court from which
it was brought, with directions to be dismissed, though it has
been decided there upon its merits.

So, in a case containing the averments by the plaintiff
which are necessary to give the Circuit Court jurisdiction, if
the defendant shall file his plea in abatement denying the truth
of them, and the plaintiff shall demur to it, and the court
should erroneously sustain the plaintiff's demurrer, or declare
the plea to be insufficient, and by doing so require the
defendant to answer over by a plea to the merits, and shall
decide the case upon such pleading, this court has the same
authority to inquire into the jurisdiction of that court to do
so, and to correct its error in that regard, that it had in the
other case to correct its error, in trying a case in which the
plaintiff had not made those averments which were necessary to
give the court jurisdiction. In both cases the record is resorted
to, to determine the point of jurisdiction; but, as the power of
review of cases from a Federal court, by this court, is not
limited by the law to a part of the case, this court may correct
an error upon the merits; and there is the same reason for
correcting an erroneous judgment of the Circuit Court, where the
want of jurisdiction appears from any part of the record, that
there is for declaring a want of jurisdiction for a want of
necessary averments. Any attempt to control the court from doing
so by the technical common-law rules of pleading in cases of
jurisdiction, when a defendant has been denied his plea to it,
would tend to enlarge the jurisdiction of the Circuit Court, by
limiting this court's review of its judgments in that particular.
But I will not argue a point already so fully discussed. I have
every confidence in the opinion of the court upon the point of
jurisdiction, and do not allow myself to doubt that the error of
a contrary conclusion will be fully understood by all who shall
read the argument of the Chief Justice.

I have already said that the opinion of the court has my
unqualified assent.